QCOM v. BRCM: Why Willful Infringement is a Red Herring

1. I cared about the original willfulness decision because it was a signal of how the judge thought of the BRCM patents. If the judge thought the patents were really bad, he would have not found willfulness. Instead, he would have said "Yes, QCOM infringed; but c'mon, anyone reading this would have reasonably thought that these patents were no good. Thus, of course QCOM infringed, and reasonably so, which makes the infringement non-willful." He didn't say that. Thus, we know that he isn't rolling his eyes at these patents but instead thinks they are real. That supports my prediction that there is a real chance that an injunction will ultimately issue in this case.

2. The new willfulness rule changes some other factors and considerations, but it doesn't change the above one jot. So now, to find willuflness, the judge has to consider yet more issues; fine. But the point from last time is still true: we already know that the judge isn't rolling his eyes at these patents. Even if he does not find willfulness this time, that basic point stays. He still thinks the patents are good; the non-finding, if any, will just be based on the new factors.

3. The willfulness issue, then, is only about two things: (1) $20M, which I don't care about in the big picture; and (2) a possible delay, if the judge holds the injunction decision until he also finishes the willfulness decision. He doesn't have to do that, but he looks like he will; maybe on the theory that he wants a clean moment for both to be apealed together.